Amid heated debates raging over whether or not satcoms should be auctioned off, media reports are now adding more ‘spice’ to the hot topic with reports the ministry is once again considering. to go to the highest court for advice on what should be done in the matter. Such speculations are truly astonishing and confusing.
It is not only that satcom spectrum is not auctioned anywhere in the world or that it is a shared good between satcom operators (unlike the case of terrestrial spectrum for mobile operators), and therefore is not an auctionable resource. How can you auction a commodity or resource to someone to whom you cannot give unique rights? Thus, worldwide, satellite spectrum is licensed for a “right of use” by all administrations and is allocated only administratively, at fees which essentially cover administration costs. In addition, the entire satcom spectrum is coordinated by the United Nations agency, the ITU, and subject to their Radio Regulations.
Even apart from the above techno-economic facts, why should we expect the DoT to trouble the Supreme Court when it had already issued its elaborate advisory judgment when the government sought its opinion through the Presidential benchmark # 1 of 2012 following the Supreme Court ruling in what is now widely known as “2G Case”.
Some of the excellent points of clarity and lessons learned from the decision of the five-judge constitutional bench which included the CJI, are listed below to refresh memories:
- The law declared in a judgment, which binds the courts, is the “ratio decidendi” of the judgment – this is the principle that emerges from reading a judgment as a whole in light of the issues raised on which the case is decided. .
- It should be noted that in the “2G Case”, the Court did not examine the case of auctions in general, but specifically assessed the validity of the methods adopted in the distribution of the spectrum during the relevant period.
- The observation in the 2G case could not apply beyond a specific case of spectrum, which according to the law declared in the 2G case, must be alienated only by auction and by no other method.
- The auction, as an economic choice of disposal of natural resources, is not a constitutional mandate, but a political decision and an executive prerogative.
- Auctions are the best way to maximize revenue, but maximizing revenue is not always the best way to serve the public good. Sometimes this can be against the public good.
- The market price, in economics, is an index of the value that the market has prescribed for a good. However, this evaluation is a function of several dynamic variables, it is a science and not a law. The auction is only one of many price discovery mechanisms.
In the case of 2G, only the mobile access spectra of the 18 affected licenses during a specific period have been canceled, and not the microwave spectrum licenses, nor other mobile spectrum licenses that are not. had not been awarded by auction since 2003. Therefore, it is essential to note that there was no general prohibition on the non-auctioning of microwave spectrum, satellite spectrum or Wi-Fi spectrum. Fi or even some other mobile access spectrum then administratively available to some licensees.
There cannot be a “one size fits all” policy to handle all types of spectrum. The spectrum of satellites is as different from the earth’s spectrum as the chalk of cheese. A shared good like satellite spectrum does not meet the basic condition to be auctioned. As previously stated, no country in the world auctions satellite spectrum. On several occasions in the past, the Honorable Supreme Court has refused to intervene in such cases to give direction unless in the implementation of such a policy there is a violation or violation of the constitutional provisions. or statutory.
In May of last year, FM Nirmala Sitharaman announced historic measures to privatize and liberalize the satellite / space sector. Bearing in mind that Indian satellites are now where Indian mobile communications was 25 years ago, domestic and international investors have been fired with great hope and enthusiasm for the industry. There is a fervent hope that retrograde steps are not taken now on the satcom spectrum to set us back again.
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